State v. J.M.W.

• Decision Date: 14 October 2005
• Docket Number: CR-04-2417.
• Citation: 936 So.2d 555
• Parties: Ex parte State of Alabama. In re STATE of Alabama v. J.M.W.<SMALL><SUP>1</SUP></SMALL>
• Court: Alabama Court of Criminal Appeals

936 So.2d 555

Ex parte State of Alabama In re STATE of Alabama v. J.M.W.¹

CR-04-2417.

Court of Criminal Appeals of Alabama.

October 14, 2005.

Rehearing Denied November 1, 2005.

Troy King, atty. gen., and J. Thomas Leverette and G. Ward Beeson III, asst. attys. gen., for petitioner.

Judge William W. Haralson, Scottsboro; and Gary Lackey, Scottsboro, for respondent.

PER CURIAM.

The Attorney General for the State of Alabama filed this petition for a writ of mandamus directing Judge William W. Haralson to vacate his order allowing J.M.W. to be released pending the outcome of his habeas corpus proceeding attacking his extradition to the State of Virginia.

On June 30, 2005, the Governor of Virginia issued a fugitive warrant demanding the extradition of J.M.W. so that he could face charges in Fairfax County, Virginia, for involuntary manslaughter and distributing controlled drugs. On July 20, 2005, Alabama Governor Bob Riley issued a rendition warrant.² On August 4, 2005, J.M.W. was arrested in Jackson County. On August 5, 2005, J.M.W. filed a petition for a writ of habeas corpus attacking his extradition. Judge Haralson held a hearing on the issue of bail pending the extradition proceedings. At the hearing, the State argued that based on the case of Balasco v. State, 52 Ala.App. 99, 289 So.2d 666 (1974), J.M.W. was not entitled to bail because he was being held on a rendition warrant. Judge Haralson granted J.M.W.'s request for bail.³ The State then filed this petition for a writ of mandamus. The hearing on J.M.W.'s habeas corpus petition challenging the validity of J.M.W.'s extradition is scheduled for November 2, 2005.

The State asserts that this case is properly before this Court by way of mandamus petition. It cites State ex rel. Russell v. Jones, 31 Ala.App. 208, 14 So.2d 590 (1943), in support of its contention. In Russell, the Court of Appeals stated:

"No other remedy is available to the State to effect the reincarceration of said convict pending the outcome of the habeas corpus appeal, so mandamus is proper to coerce the performance of the official act sought if the lower court was without jurisdiction to grant such bail. 38 C.J., Sec. 161, p. 645; Sec. 167, p. 647. Use of the writ at common law has been to confine such court to a lawful exercise of its prescribed jurisdiction as well as to compel it to exercise its authority when it is its duty to do so. . . . It has been used when seeking to compel the allowance of bail pending appeal (38 C.J. Sec. 163, p. 646; Ex parte Rogers, 17 Ala.App. 172, 82 So. 785, [(1919)]; State ex rel. Reynolds v. Weaver, 167 Ala. 672, 52 So. 638 [(1910)]; Ex parte Byrd, 172 Ala. 179, 55 So. 203 [(1911)]), and, conversely, of course it is equally appropriate to compel official action in vacating an order granting bail when such an order was without legal warrant."

31 Ala.App. at 209, 14 So.2d at 591, (emphasis added). Because the State is challenging the circuit court's authority to grant bail in this case, precedent supports review of this issue by way of a petition for the writ of mandamus. However, according to Rule 21(a)(3), Ala.R.Crim.P., a mandamus petition must be filed within a presumptively reasonable time, i.e., within the time for filing a notice of appeal.⁴ Here, Judge Haralson granted bail on August 8, 2005. This mandamus petition was filed on August 31, 2005-23 days after the ruling that is the subject of this mandamus petition.

The State argues that the time period that should be used as a presumptively reasonable time in this situation is the time within which the State must appeal an order granting a petition for a writ of habeas corpus. See § 12-22-90, Ala.Code 1975. The State has 42 days to appeal a ruling granting a habeas corpus petition. Rule 4, Ala.R.App.P. J.M.W. argues that the presumptively reasonable time within which to file the mandamus petition in this case was seven days.

The Supreme Court first held in Ex parte Thomas, 828 So.2d 952 (Ala.2001), that the State had seven days within which to file a mandamus petition challenging a mid-trial ruling dismissing an indictment because the situation was analogous to the State's appealing a pretrial ruling dismissing an indictment. Rule 15.7, Ala. R.Crim.P. The reason for the Supreme Court's holding was that the only remedy the State had to challenge a similar ruling was the right to appeal a pretrial ruling dismissing a case. See also Ex parte Sharp, 893 So.2d 571 (Ala.2003).

The State also has the right to appeal the grant of a petition for a writ of habeas corpus. See § 12-22-90(b), Ala. Code 1975. The situation presented in this case—the granting of bail in a case involving a rendition warrant—is more analogous to the State's appealing an order granting a habeas corpus petition. Therefore, based on the Supreme Court's decisions in Thomas and Sharp, we hold that the State had 42 days from the date of Judge Haralson's ruling to file this mandamus petition. Thus, this mandamus petition is timely.

Even if we were to conclude that the shorter time period applied in this case, the State attempted to comply with the requirements of Rule 21(a), Ala.R.App. P., by detailing its reasons for the delay in filing this mandamus petition.⁵ The State's petition reads:

"The district attorney did not file a written objection to the granting of J.M.W.'s bail. Counsel for the State only received the transcript of the hearing showing that the district attorney presented the instant bail issue to the trial court . . . yesterday, August 30, 2005."

The "Requisition Demand and Agent Authorization" signed by the Governor of Virginia stated:

"Whereas, it appears by the application for requisition and copies of Affidavit, Detention order, etc., which are hereunto annexed and which I certify to be authentic and duly authenticated in accordance with the laws of this State that [J.M.W.] stands charged with the crimes of involuntary manslaughter and distribution of a controlled drug (2 counts) which I certify to be a crime(s) under the laws of [Virginia] committed in the County of Fairfax in [Virginia], and it has been represented to and satisfactorily shown to me that the accused was present in the State of Virginia at the time of the commission of said crime and thereafter fled from the justice of this State and may have taken refuge in the State of Alabama."

The State, citing this Court's holding in Balasco, supra, argues that the circuit court clearly erred in releasing J.M.W. after a rendition warrant had been executed. The State relies on the following statement in Balasco:

"In Title 15 §§ 62, 63, Code of Alabama 1940 [now §§ 15-9-42 and 15-9-43, Ala Code 1975], is a requirement, subject to an exception not applicable here, that an accused be admitted to bail on a fugitive warrant, to await the execution of a rendition warrant of the Governor of Alabama, but there is no statutory authority for bail after an arrest on the latter warrant. The general rule is that an accused being held on a warrant of rendition is not entitled to bail. 35 C.J.S. Extradition § 19 p. 445."

52 Ala.App. at 102, 289 So.2d at 667 (emphasis added). J.M.W. argues that the above comments were obiter dictum.⁶ He argues that Balasco is not binding on this Court and, in fact, is inconsistent with the holdings of the majority of jurisdictions that have similar statutes.⁷

In Balasco the defendant, an individual awaiting extradition to the State of Mississippi who had been arrested on a rendition warrant, appealed the denial of a petition for a writ of habeas corpus. The main issue addressed by the Court was whether Balasco's constitutional rights had been violated. The Court also addressed Balasco's claim in his habeas corpus petition that he was being held on excessive bail. The Court noted that after the extradition warrant had been executed the lower court set bail but Balasco was not able to make bail. The Balasco Court stated that Balasco was not entitled to be released on bail because he was being held on a rendition warrant and the extradition statutes did not allow for a detainee's release after the issuance of a rendition warrant. We believe that the Balasco's Court's resolution of this issue is entitled to deference.⁸

J.M.W. also argues that because he is a juvenile the Interstate Compact on Juveniles, codified at § 44-2-1 et seq., Ala. Code 1975, governs his extradition, and not the provisions of the Uniform Criminal Extradition Act ("UCEA"), codified at § 15-9-1 et seq., Ala.Code 1975.⁹

The Governor of Virginia sought J.M.W.'s extradition so that he could face criminal charges in Virginia for involuntary manslaughter and distributing controlled drugs, not so that he could face delinquency proceedings. As the Texas Court of Appeals stated in Ex parte Jetter, 495 S.W.2d 925, 925-26 (Tex.Crim.App. 1973):

"Whether appellant will have to be certified as an adult to stand trial for the crime in the State of Florida once she is extradited is a question for the courts of the State of Florida to determine and not one for the courts of the State of Texas. Cf. Ex parte Watson, Tex.Cr. App., 455 S.W.2d 300 [(1970)], and the cases cited therein.

"Further, we find no limitation in the Uniform Criminal Extradition Act excluding minors from its operation. It should be remembered that the State of Florida is not asking for the return of this petitioner to answer the charge of being a juvenile delinquent, but is seeking her delivery to stand trial for the offense of murder in the first degree."

See also A Juvenile, 396 Mass. 116, 119, 484 N.E.2d 995, 997 (1985) ("Where the petitioners have been charged with a crime in the demanding State, the asylum State has an `obligation to deliver, without any reference to the character of the crime charged, or to the policy or laws of the State to which the fugitive has fled' under the interstate rendition clause of the United States Constitution."). Therefore, we apply § 15-9-43, Ala.Code 1975,...